Boggs v. Clark

Citations

• 37 Cal. 236

Syllabus

<p>Estoppel by Judgment.—A judgment, to operate as an estoppel, must be a judgment of a Court of competent jurisdiction upon the same subject matter, in a cause regularly tried on its merits, upon issues duly joined by proper pleadings in such Court, between the same parties or their privies.</p> <p>Idem.—E. recovered judgment against II., foreclosing a mortgage on certain lands, and under an order of sale duly issued thereon the Sheriff sold and in due course conveyed the said lands by deed to B., who, under a writ of assistance, duly issued, procured C. to be dispossessed of a certain tract of land as being within said deed. C. subsequently procured from the Court rendering said judgment, upon proper motion and notice thereof to B., and after trial on the merits of the issues arising thereon, an order to be restored to said possession, on the ground that said tract of land was not within said deed, and was so restored, under said order, which became final. Subsequently B. brought ejectment against C. to recover said land, to which C., in answer, after setting up said facts, and that B. had and claimed no other title to said land except under said deed, ple'aded that, as between B. and C., the title thereto was res adjudicata. Held, that the facts so pleaded constituted no bar or legal defense to B.’s action against C. to recover said land, and that the Court below did not err in striking out so much of C.'s answer as setup the same.</p> <p>Motion fob New Trial—Dismissal of, for Want of Prosecution.—An order denying and dismissing a motion for a new trial for want of due diligence ia bringing the same to a hearing, as required by the Practice Act, (Sec. 196,) rests in the sound discretion of the Court.</p> <p>Idem.—In an action by B. against C., pending in the Seventh District Court for Napa County, in which B. recovered judgment, in said county, on the 8th of June, 3867, an order of Court was entered on the same day, by consent, that C. have sixty days in which to